R. v. Dennis, 2018 BCPC 270 (CanLII)
|
|
2018 BCPC 270 |
|
|
Date: |
||
|
File No: |
104356-2-C |
|
|
Registry: |
Kamloops |
|
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
SHANE DALTON DENNIS
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE M.R. ARMSTRONG
|
Mr. Frank Caputo |
|
|
Counsel for the Defendant: |
Mr. Jordan Watt |
|
Place of Hearing: |
Kamloops, B.C. |
|
Date of Hearing: |
October 11, 2018 |
|
Date of Judgment: |
October 25, 2018 |
[1] Shane Dalton Dennis is before me on Information 104356-2-C having entered a guilty plea to Count 1 which charges that on or about July 28, 2017, he did intentionally or recklessly cause damage by fire or explosion to the property, the Sandman Inn and Suites Hotel, knowing or being reckless of the fact that the property was inhabited or occupied, contrary to s. 433(a) of the Criminal Code. Section 433(a) is an indictable offence punishable by a maximum sentence of life imprisonment. Mr. Dennis has been in custody for 454 days and is entitled to credit at the enhanced rate of 1.5 times that value or 681 days.
[2] The Crown seeks a sentence from 4 to 5 years at the high end, and a further 2 years imprisonment followed by 3 years’ probation at the low end. Mr. Dennis seeks a sentence of 2 years less a day less credit for time served plus probation for 3 years.
[3] Four reports were prepared in anticipation of this sentencing:
1. a psychiatric pre-sentence report prepared by Dr. Lyne Beauchemin on April 12, 2018;
2. a Gladue report commissioned by Mr. Dennis’ then-counsel and prepared by Lynda C. Price on April 30, 2018;
3. a psychological assessment by Dr. Patrick Bartel dated June 4, 2018; and
4. a pre-sentence report prepared by Probation Officer Eryn Rex dated June 11, 2018.
Legal Principles
[4] Section 718 of the Criminal Code, R.S.C. 1985, c C-46, as amended, provides the starting point for the sentencing process and sets out the fundamental purpose of sentencing:
to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or the community.
Section 718.1 sets out the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[5] Section 718.2 requires the court to take into consideration additional principles, of which the following have application to this sentencing:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,…
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . .
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Thus, s. 718-718.2 lay out the roadmap for this sentencing of Mr. Dennis’ act of arson.
Circumstances of the Offence
[6] On July 28, 2017, Mr. Dennis had been evacuated from his home in Williams Lake due to raging forest fires in the area. He was housed in the Sandman Inn and Suites Hotel (the “Sandman”) in downtown Kamloops along with his beloved grandmother, Veronica Dennis, and other family members. He had completed his parole after a lengthy sentence for sexual assault in May of 2017, 71 days prior to the present offence. He had taken money from his grandmother’s pension and had been drinking alcohol and consuming drugs. He declared that he was not meant for the outside world and wanted to return to the penitentiary. A family member called 911 after he broke a window and “trashed” the hotel room. He exited his hotel room, dropped to his knees and exclaimed “arrest me”. Shortly thereafter, smoke was seen coming from the room which had quickly became smoke-filled. He had set fire to his grandmother’s suitcase causing the sprinkler system to activate in the hotel. At the time, the hotel was experiencing higher than usual occupancy due to the forest fire evacuations.
[7] The water sprinklers activated by the fire deposited three inches of water in the hotel hallway. The exact amount of damage and costs of restoration are not entirely clear but at least $5,002 was spent on clean-up and a further estimate of $18,000 in repair costs was provided. No victim impact statements were provided either by the hotel or by Mr. Dennis’ grandmother.
Circumstances of the Offender
Family Background
[8] Mr. Dennis is 31 years old. According to the Gladue report, he is a part of the Thaltan Nation and in particular, a member of the Iskut First Nation which is located 515 kilometres north of Smithers, British Columbia. His maternal grandmother, Veronica Dennis, raised him from infancy because of his mother’s use of alcohol. He experienced sexual abuse at the hands of siblings, household members, and other community members between the ages of 2 and 7. He was placed in foster care from ages 7 to 12. At age 11, he was violently raped by an adult male which caused him significant trauma. He coped by drinking heavily and using drugs. By Grade 8 he was “hanging with the wrong crowd”. Much of his life was spent in the Williams Lake area and on a reserve of the T’exelemc Band.
[9] Between the ages of 14 and 19, he lived on the street and “couch-surfed”, occasionally returning to his grandmother’s home to shower and eat before returning to the streets. He returned to live with his grandmother from age 20 to 24 when he himself became a father. He has two children, aged 11 and 7.
[10] Veronica Dennis cared for Mr. Dennis in a home which she endeavoured to keep free from alcohol. His mother was unable to care for him, “because she drank too much”. Mr. Dennis bristled at the suggestion in the Gladue Report that his mother abandoned him. Veronica Dennis has lost touch with Mr. Dennis’ mother and worries about her well-being.
[11] Veronica Dennis was orphaned at a young age and Lynda Price’s Gladue report indicates that she attended Residential School at Lejac when she was approximately age 5 and later at Lower Post, B.C. The pre-sentence report of Probation Officer Rex contains a Gladue component which references a 2012 report in which Veronica Dennis described attending St. Mary’s Residential School in Mission, B.C. for 11 years. Residents of that school experienced mental, physical and sexual abuse with frequent use of the strap. Veronica Dennis reports running away from the school in 1958. In Ms. Price’s Gladue Report, Veronica Dennis describes not liking residential school because “most of the time, they tried to teach us - like they use to downgrade our family”.
[12] Dr. Bartel’s report indicates that there have been suspicions that Mr. Dennis’ mother may have abused substances while pregnant with him such that he may suffer Fetal Alcohol Syndrome or Effects but no such diagnosis has been made. Mr. Dennis’ father was not a part of his life and Mr. Dennis does not care about him. collateral reports suggest that he is deceased.
Schooling
[13] Mr. Dennis has not completed high school. Dr. Beauchemin reports that Mr. Dennis claimed to have dropped out of school around Grade 8 or 9 as the town was “too racist”. Dr. Bartel’s report indicates that Mr. Dennis left school in Grade 10 but that his last grade completed was either 8 or 9. Lynda Price’s Gladue Report states that Mr. Dennis has completed Grade 10. Dr. Bartel’s report describes a long history of behavioural problems involving aggression to peers (51 reported incidents) and oppositional behaviour to adults which resulted in frequent suspensions from school. Mr. Dennis described his school experience as “horrible”. Ms. Price’s Gladue Report indicates that Mr. Dennis suffered racism and was blamed for being the troublemaker at school and felt picked on. He relates being expelled for “fighting with non-Aboriginal kids”.
Substance Use
[14] Mr. Dennis first experimented with cigarettes, alcohol and cannabis at a young age. Mr. Dennis’ abused a variety of substances including cannabis, alcohol, crack cocaine, and crystal methamphetamine. He has overdosed multiple times. Dr. Beauchemin reports that in August of 2017, Mr. Dennis told Dr. Lessing that he considered himself addicted to “crystal methamphetamine, cocaine, speed, crack and also alcohol”. Mr. Dennis told Dr. Bartel that he stopped using cocaine and crystal methamphetamine for a few years but returned in 2012 upon the apprehension of his children. He then daily used alcohol, crystal methamphetamine, cocaine and bath salts. Probation Officer Rex writes that Mr. Dennis admits to using substances in custody but did not disclose which substance or from whom he obtained it. He apparently abstained while on parole until May of 2017. Upon expiry of his federal warrant, he returned to drug use and was using one to two grams of each of methamphetamine and cocaine daily before the offence. The night before the offence, he used three grams and on the morning of the offence, he used four grams plus alcohol. Mr. Dennis explained that he resorted to drugs and alcohol to “kill his hunger pain”. One would think that spending the same amount of money on food would more productively address his hunger.
[15] Mr. Dennis has not attended a formal drug treatment or recovery program but did connect with Dave Manuel, Drug and Alcohol Counsellor with Tk’emlúps te Secwepemc while on Parole. Mr. Dennis did not enjoy the Kamloops Mental Health and Substance Abuse sessions with a counsellor who suggested a holistic approach to recovery. Mr. Dennis “relayed minimal interest in attending any treatment, counselling, or programming to address his consumption of street drugs, sharing he felt there was no link between his abuse of methamphetamines and his offending pattern”. Dr. Bartel noted that Mr. Dennis has a stimulant use disorder in remission due to his limited access to drugs while incarcerated. Dr. Beauchemin noted that Mr. Dennis suffers from a severe substance abuse disorder (primarily alcohol and crystal methamphetamine) in early remission in a controlled environment.
Mental Health
[16] Dr. Beauchemin describes Mr. Dennis’ case as complex and relates an extensive history of behavioural issues including suicidal ideations and hospitalizations and numerous previous assessments. Dr. Beauchemin diagnosed him as having Cluster B Personality Disorder (primarily antisocial and borderline) with a prior estimate of being in the borderline to low-average range of intelligence. In addition, she diagnosed a severe substance abuse disorder in early remission in a controlled environment. Dr. Beauchemin notes “possible post-traumatic stress disorder features” but notes this was never mentioned in numerous previous psychiatric and psychological assessments. She concludes that there is no current evidence for a major affective disorder (Major Depressive Disorder, Bipolar Disorder) or a Psychotic Disorder.
Risk Assessment
[17] Both Dr. Beauchemin and Dr. Bartel addressed Mr. Dennis’ risk to re-offend in a violent way. Dr. Bartel applied variety of tools, some of which have been criticised with respect to their application to indigenous populations in Ewert v. Canada, 2018 SCC 30 (CanLII), 2018 S.C.C. 30. Dr. Beauchemin and Dr. Bartel also applied the HCR-20 assessment tool which was not at issue in the Ewert case. Dr. Beauchemin concluded Mr. Dennis posed a moderate to high risk of violent offending. Dr. Bartel noted an array of risks:
• higher risk for general violence,
• moderate to high risk for sexual violence, and
• low risk for arson.
Dr. Bartel noted that the circumstances of the fire evacuation “would be stressful and taxing for any individual” and Mr. Dennis was unable to cope and resorted to previous unhealthy coping patterns. Of particular note, Dr. Bartel observes that the behaviours around the fire setting suggest it was “part of a larger destructive mischief type offence where he was destroying property out of anger as opposed to wanting to physically harm or injure another person by carrying out the act of arson” although that possibility cannot be ruled out. There was no indication of pyromania or any fire-specific concern. It is important to note here that Mr. Dennis is to be sentenced for the offence he committed, not for his general risk for violence.
Criminal Record
[18] Mr. Dennis has a criminal record for violence and breaches as outlined in the Pre-sentence Report. The most significant offences on his record are the June 2012 convictions for sexual assault for which he received a jail sentence of 5 years. He was released from custody onto parole and in 2015, was noted to be abusing substances resulting in a revocation of his parole on November 17, 2015. Mr. Dennis says he did not want to be out of custody when first released and within a month of release, specifically chose to use crystal methamphetamine to bring about his return to custody. In December of 2016, he was granted parole again and was successful until the expiry of his parole in May of 2017. Mr. Dennis reports that he engaged with staff, attended appointments and wanted to make changes in his life. His only other jail sentence arose from a 2005 conviction for Breach of Probation for which he received 12 days’ time served plus probation.
Scope for Rehabilitation
[19] Mr. Dennis is a relatively young man. His responses to previous interventions was varied. After scuttling his first parole release, he seems to have embraced the supports in place during his second parole release. The Correctional Service of Canada reports that Mr. Dennis displayed a “moderate degree of positive change” in his attitudes toward the sexual offences. He completed offence-specific programming while in custody and while on parole. Corrections noted that Mr. Dennis still placed some blame on his victims and on his circumstances. Mr. Dennis is noted to have been compliant while on remand for this offence.
[20] Probation Officer Rex writes that Mr. Dennis was adamant that he would not comply with house arrest or curfew conditions on this matter because “he does not like to be stuck sitting in one place for too long”. He was similarly unenthusiastic about a condition that he abstain from the consumption of alcohol or drugs, fearing being set up for breaches. Mr. Dennis did express willingness to again work with Dave Manuel but does not believe that a full-time attendance program such as Round Lake or Tsow-tun le Lum would work for him. In court, Mr. Dennis appeared less than enthusiastic about attending a full-time attendance program for substance abuse but said that he was somewhat open to it. He remained open to work in the community with Drug and Alcohol Counsellor Dave Manuel.
[21] Since his incarceration, Mr. Dennis has been taking medication which he finds helpful in grounding him and he feels better. He also finds art and music to be therapeutic.
Aggravating Circumstances
[22] The most troubling aspect of Mr. Dennis’ fire-setting is the risk to which he subjected the other residents of the Sandman. It is fortunate that the sprinkler system functioned to extinguish the fire and that no one was killed or injured. As noted in R. v. Berg, 2016 BCPC 379 (CanLII), 2016 B.C.P.C. 379 at para. and R. v. Brain, 2006 BCPC 278 (CanLII), 2006 B.C.P.C. 278 at para 15, such fires also pose a danger to police and firefighters. Mr. Dennis’ actions in setting the fire appear to have been in a fit of pique directed at his family. The actual locus of the fire was his grandmother’s suitcase.
[23] The second aggravating factor is the recency of this offence after the completion of his previous sentence. Mr. Dennis had only finished parole 71 days before committing this offence. The third aggravating factor is Mr. Dennis’ risk of future violence, although I note that his risk of future arson is low.
Mitigating Circumstances
[24] There are a number of mitigating factors which apply:
1. Mr. Dennis entered an early guilty plea, complicated somewhat by a change of counsel and the Crown’s consideration of a potential Dangerous Offender application. The early guilty plea avoided trial which one would expect would have been very difficult for his family;
2. Mr. Dennis now expresses remorse for his actions;
3. Mr. Dennis was discombobulated by virtue of his evacuation to Kamloops during the 2017 fire season. He was taken from his home and housed in a hotel with his grandmother and other family in a faraway community;
4. Mr. Dennis did not appear to want to hurt anyone but rather impulsively set the fire amidst a spate of other mischief;
5. Mr. Dennis was not motivated by greed or seeking to profit from the fire;
6. Mr. Dennis comes before the court bearing scars from colonialism including his grandmother`s experience at residential school, his parents` struggles with substance abuse, extensive childhood traumas including serious sexual offences, period of foster care and homelessness, racism at school, incomplete education, dislocation and loss of connection to his culture.
Analysis
Purpose and Objectives
[25] Returning to the purpose and principles of sentencing, the fundamental purpose is to protect society and contribute to respect for the maintenance of a just, peaceful and safe society. Parliament has legislated that the maximum sentence for this offence is life imprisonment which reflects the seriousness of the offence and its potential impact upon a just, peaceful and safe society.
[26] Parliament has identified the objectives of the sanctions imposed in s. 718. The Crown emphasised the objectives of denunciation, separation from society, rehabilitation, and promotion of a sense of responsibility in Mr. Dennis. Defence Counsel urged me to focus on rehabilitation rather than denunciation and deterrence in light of Mr. Dennis’ youth and willingness to address his substance abuse.
[27] The actions of Mr. Dennis to require denunciation. Although Mr. Dennis is at low risk for future arson and thus may not require specific deterrence, general deterrence is still applicable: others ought not to resort to fire-setting when having tantrums. Mr. Dennis’ record does not lead me to conclude that separation from society is required. Rehabilitation is an objective which merits emphasis for Mr. Dennis. Despite his many difficulties, Mr. Dennis is a relatively young man. During his last period on parole, he embraced the rehabilitative supports offered and enjoyed not insignificant success. He remains open to work on his issues. I must not craft a sentence that would undermine his commitment to rehabilitation. Mr. Dennis is not in a position to provide reparations for the harm he has caused but I accept his statement of remorse and his sentence will be designed to cultivate that sense of responsibility and acknowledgment of harm.
[28] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this case, the offence is serious as identified by its maximum potential sentence. Nonetheless, I must not lose sight of the fact that no one was injured or killed and that the property damage was thankfully less than it might have been but for the operation of the sprinkler system. Mr. Dennis will not be sentenced for what “might have happened” but he will be sentenced for taking the risks he did in an occupied and busy hotel.
[29] Mr. Dennis’ degree of responsibility is complex. His self-induced intoxication does not diminish his responsibility. However, Mr. Dennis was struggling with his evacuation to the Sandman as a result of forest fires in his home community of Williams Lake. He was also struggling with the loss of the structure and supports he enjoyed while on parole. He acted impulsively rather than with premeditation. He was not motivated by greed. The multitude of systemic and background factors which flow from Mr. Dennis’ indigenous heritage are evident in the reports filed, especially Ms. Price’s Gladue report and the Pre-sentence report of Ms. Rex. His grandmother experienced residential school as an orphan. Many of Mr. Dennis’ immediate family struggled with addiction to alcohol or drugs. Mr. Dennis was victimized at a young age by family and community members in unthinkable ways. He was apprehended and placed in foster care. He experienced racism at school. For Mr. Dennis, these factors are tangible and speak to the degree of his responsibility.
Principles
Aggravating and Mitigating Factors
[30] Turning to s. 718.2, the aggravating features of Mr. Dennis’ crime largely flow from the serious risk of serious harm that he assumed in lighting his grandmother’s suitcase on fire. The impact on the victims of Mr. Dennis’ crime is not entirely clear. His grandmother has not provided a victim impact statement. The full costs to the Sandman are not entirely clear. The effects upon other residents of the Sandman are not stated. I expect that they experienced inconvenience at the very least. Luckily, the impacts are not as severe as they might have been. The recency of his parole expiry is also of concern. The mitigating features are his early guilty plea, remorse, the de-stabilizing effect of his own evacuation, his impulsivity rather than planning or deliberation, his non-pecuniary motive, and the Gladue factors at play.
Parity
[31] The next principle to apply is parity. Mr. Dennis’ sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As counsel and courts have noted, the facts of each case are different and it is “difficult to identify a definitive range of sentences from all the cases”: R. v. Berg, 2016 BCPC 379 (CanLII), 2016 B.C.P.C. 379 at paras. 35 and 36. The following cases were provided to me by counsel:
R. v. Yellowknee, 2017 ABCA 60 (CanLII), 2017 A.B.C.A. 60: The Court of Appeal upheld a sentence of twelve months for an indigenous man who texted his partner his intention to burn down the home he shared with her and then did so despite being on a recognizance barring him from having contact with her and from consuming alcohol. Their home, was destroyed, damaging a third party’s property as well. The accused appealed and argued that the Court did not give effect to the principles of Gladue. The minority concurring judgment was specifically rejected by the majority.
R. v. Day, 2013 BCCA 172 (CanLII), 2013 B.C.C.A. 172: The Court of Appeal upheld a sentence of two years less a day for a 47 year old man who had a long history of mental illness and substance abuse and who had an extensive criminal record sporting 28 convictions in the preceding seven years. The Accused had just been released from Kamloops Regional Correctional Centre seven days earlier. He burned down a camper owned by his father but which he sometimes used. The fire spread to another motorhome owned by farm workers and caused damage to a nearby vehicle. He warned his family sleeping in an adjacent house because he did not want anyone harmed. No one was injured. The Accused had been drinking all day when he set the fire and it was his intoxication and not his mental illness which caused him to commit the offence. The Accused sought a sentence of five months. The Court determined that the two year-less-a-day sentence was not “a substantial and marked departure from sentences customarily imposed on similar offenders in similar circumstances” as the offence was very serious and had potential for “erratic and unforeseen consequences”.
R. v. Berg, 2016 BCPC 379 (CanLII), 2016 B.C.P.C. 379: Mr. Berg received three and one half years less credit for time served for one count of arson that destroyed an occupied residence and one year concurrent for threatening to commit that arson. The offences targeted his ex-girlfriend. Her home was set alight in the middle of the night and was a total loss and neighbouring properties were damaged and had to be evacuated. Luckily, all the occupants escaped. His conduct was “significantly fuelled by alcohol” and was impulsive. He was remorseful and open to staying at a treatment facility. He frequently missed probation appointments. He had a difficult childhood marred by parental alcoholism and physical discipline. He dropped out of school in Grade 6 after experiencing significant physical and emotional abuse at the hands of his teachers. He worked as a mechanic for approximately 25 years before suffering severe head injuries and degenerative disc disease. He began drinking alcohol at age 11 and had been hospitalized on a psychiatric ward. Alcoholism and depression plagued his life. He was an angry person and that anger was out of control at the time of the offence. Mr. Berg was diagnosed with borderline personality disorder and anti-social personality disorder. He was assessed to be at high risk to engage in future violence and his mood difficulties, personality traits, impulsivity, poor distress tolerance, and substance use and lifestyle “generates situations where poor outcomes are more likely to take place” including risk to unintended targets. Custody provided more structure for him and without “genuine engagement in treatment programs, little long-term change” was expected. After a review of analogous cases, the court found the range to be between eighteen months and five years (at para. 38). Denunciation, specific and general deterrence, and rehabilitation were required. But for his health problems and initiative to identify and treat them, his sentence would have been higher.
R. v. Hemmerling, 2017 BCPC 10 (CanLII), 2017 B.C.P.C. 10: Mr. Hemmerling was sentenced to two years’ less a day plus three years’ probation for causing damage by fire to a dwelling house. He had threatened to hurt someone and to destroy his niece’s rental home (where he had been living) and to “take some cops down”. He was intoxicated. Prior to setting the fire, he used knives and threats of a shotgun to keep the police at bay. Police retreated and evacuated neighbours. Police made several attempts to apprehend him. He raged against police and family. He tried to induce the police to shoot him by pretending to grab guns. A taser was deployed but he shook that off. He said that he wanted to kill those would attempt to rescue him. Police extinguished the first and second fires he set but he set another. Police attempted to rescue him from the burning building. He continued to threaten to kill them and called them to come in. One officer tried to pull him through a window but he threatened to stab that officer. He was eventually rescued by police just as the residence collapsed and taken to the psychiatric ward where he continued to threaten police. The home-owners were denied insurance coverage over $5,000 because the accused was a tenant. The financial loss was devastating (approximately 150,000) to the owners one of whom was a retired pensioner. The accused had a good childhood but at age 13, began smoking marihuana and skipping school He left after Grade 8 or 9. His record included an assault of his 10 year old daughter. He had a long period of stability after attending Miracle Valley Treatment Centre in 2005 to 2014. He volunteered for the Salvation Army and was a valued member of their team until he moved out of town and returned to alcohol and drug use. A month before the offence, he voluntarily admitted himself to the psychiatric ward. He had a long history of mental health issues and his current diagnoses were alcohol use disorder, marihuana use disorder (in remission for 25 years), and personality disorder (mixed features: borderline, dependent, antisocial features). He did not have a major mental disorder but rather an “immature personality organization and alcohol addiction”. The Accused was willing to attend a residential addictions recovery program and a bed was available. The Court concluded that Mr. Hemmerling’s actions were not caused by mental illness but rather by alcohol consumption and thus his moral culpability was not reduced by virtue of his mental health issues. A primary aggravating feature was the ongoing confrontation with police and continued efforts to set the house on fire. His stated intention to put police at risk was a significantly aggravating factor.
R. v. Campeau, [1999] O.J. 2415 (C.A.): The Ontario Court of Appeal upheld an 18 month sentence after trial on defence appeal for an accused who poured gas on the porch of a home which was occupied by sleeping adults and children. The conduct was deliberate and required some planning and placed a number of lives at risk. The accused was not a first offender and had no remorse or contrition.
R. v. Brain, [2002] B.C.J. 1330 (P.C.): The Accused was sentenced for arson to a Quonset hut and for possession of stolen property after trial to two years less one day plus probation for three years. The accused flicked a cigarette recklessly causing the fire which destroyed the hut. The hut was next to a residence. He had a record which included the manufacture and exploding of a pipe bomb. He was diagnosed as a pathological fire-starter. He had problems with alcohol and psychological problems. The court’s primary task was to protect the public. The range identified was two to three years.
R. v. Makinaw, [2002] A.J. 1529 (P.C.): The Accused received a nine month sentence after guilty plea for setting two fires to a hotel knowing it was occupied. Counsel had made a joint submission for a conditional sentence for eighteen months. The court concluded that a conditional sentence was not appropriate. The Accused was intoxicated and had stacked up material in the hallway which he lit to keep warm. The sprinkler system activated. The fires caused $800 damage. The Accused was a 28 year old indigenous male. His criminal record included one theft and one impaired driving conviction for which he was received probation and was fined.
R. v. B.R.S., [2011] O.J. 4273 (C.J.): The court imposed a sentence of two years less a day plus probation for three years after a guilty plea to arson with knowledge that the property was occupied, possession of incendiary material, mischief over and under $5000 and breach of probation. On the first occasion, the Accused splashed turpentine on his walls and threatened to light it on fire. Two days later, he punctured an aerosol can and sprayed the contents on his bed and lit it afire. He alerted the other residents and fled. The property was a total loss ($210,000). No one was injured. He had a significant criminal record. He had a chaotic childhood marred by parental drug use and violence which led to CAS involvement and a Big Brother who sexually abused him. He left home as soon as he could to live on the streets where he became involved in drug use and crime. He has not received counselling for his problems. He had little insight into his problems but clearly needed professional help. Until he gets that help, he poses a significant threat to society.
Restraint
[32] Section 718.2(d) requires that Mr. Dennis not be deprived of liberty if less restrictive sanctions may be appropriate. Given the seriousness of the offence, Mr. Dennis high risk of violence, Mr. Dennis’ criminal history and his limited insight, some deprivation of liberty is appropriate. I am satisfied that the public will be best protected if a lengthy period of probation can accompany that deprivation of liberty. Section 718.2(e) requires that:
all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders
[33] Mr. Dennis has experienced many of the unique background and systemic factors outlined in his Gladue report which have resulted in his current offending including:
a. the familial and cultural dislocation wrought by his grandmother’s attendance at residential schools,
b. the impacts of severe substance abuse within his family and in particular, on his mother who was unable to care for him or his siblings, and substance misuse by his siblings,
c. his own substance abuse history;
d. sexual abuse at the hands of family and community members, and the profound impact of that on his own mental health,
e. racism experienced at school,
f. dislocation from his family, time in foster care, and ongoing dislocation from his own children,
g. his own disconnection from his culture and language as evidenced by his own hostility toward indigenous people,
I am mindful of the devastating effects of the unique circumstances of indigenous people and the resulting historical overrepresentation in prison. Mr. Dennis’ sentence must take those circumstances into account.
Conclusion
[34] Although it is difficult to identify a range of sentence for the offence of arson of occupied property, I am satisfied that the range of eighteen months to five years identified in R. v. Berg, 2016 BCPC 379 (CanLII), 2016 B.C.P.C. 379 at para. 38 is apposite. I am also satisfied that the risks posed by Mr. Dennis, his petulance in setting the fire, his criminal record for violence and breaches, and his limited insight place Mr. Dennis above the low end of that range. I am also satisfied that the early guilty plea, stated remorse, limited damage, lack of injury, Gladue factors, the spark of hope provided by his success during his most recent period of parole, and his commitment to work with Dave Manuel to address his addiction place Mr. Dennis below the high end of that range. I am satisfied that Mr. Dennis requires intensive treatment for his addiction and that his insight in that regard is wanting.
[35] The sentence I impose is two years which is 730 days, less credit for the 454 days he has already served at the enhanced rate of 1.5 times that value or 681 days, leaving 49 days of further incarceration. I am mindful that the healing lodges outlined in Mr. Dennis’ Gladue report are not available for a sentence of that length, but I recommend that every effort be made to support and foster Mr. Dennis’ cultural connections and substance abuse treatment during that period. I am satisfied that the protection of society, the maintenance of a just, peaceful and safe society, and Mr. Dennis’ rehabilitation require a lengthy period of probation. Following his 49 days’ imprisonment, there will be a Probation Order for three years with the following terms and conditions (with the registry pick list numbers in brackets:
Probation Terms
1. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation (2001);
2. You must report in person to a probation officer at 102-455 Columbia Street, Kamloops, B.C. within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by the probation officer. (2104);
3. You must not go to the Sandman Inn and Suites, located at 550 Columbia Street, Kamloops, B.C. (2301);
4. You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number, and you must not change your residence or your phone number without written permission from your probation officer (2203);
5. You must obey all of the rules of your residence, so long as they do not conflict with the terms of this order or the directions of your probation officer. If there is a conflict, you must tell your probation officer about the conflict immediately (2205);
6. I appreciate that Mr. Dennis bristles as restrictions on his movement, but to ensure that he gets properly settled into this probation order, I am going to order a curfew for the first six months of his Probation. That curfew is:
For the first six months of this order, you must obey a curfew by being inside your residence between 11:00 PM and 6:00 AM, each You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends at your residence or calls to check your compliance with the curfew condition of this order.
You may be away from your residence during the curfew hours with the written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the curfew hours.
You may also be away from your residence during the curfew hours:
a. while in the course of your employment, or when travelling directly to, or returning directly from, your place of employment. If requested, you must provide your probation officer with details of your employment, including location and hours of work.
b. in the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility. If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.
c. in the immediate presence of a person approved in writing by your probation officer. You must carry the written permission with you when you are away from your residence during the curfew hours (2209);
7. Given the risk that Mr. Dennis’ consumption of alcohol and drugs poses as evidenced by this offence, I order that: You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription (2401);
8. You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor license (2403);
9. The next condition lies at the heart of the rehabilitation which this order is designed to foster. Mr. Dennis, your success depends on your willingness to accept help for the many layers of hurt and substance abuse that you have used to cope with that hurt. If you do not comply with this condition, you and the public may pay a high price:
You must participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer.
Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to:
a. anger management,
b. alcohol or drug abuse,
c. mental health, (2501).
When last we spoke, you were reluctant to attend a full time attendance program for treatment and so I have not included such a condition here. If your views on that have changed, I will include that (2502);
10. With your consent, I will refer you for specific counselling to the Forensic Psychiatric Service. Do you consent? If so, condition 10 will be:
Having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling or treatment program through Forensic Psychiatric Services (2503);
11. You must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code, or any related authorizations, licenses or registration certificates.( 2610);
12. You must not possess any incendiary device, flammable product or explosive substance. This prohibition includes, but is not limited to, lighters, matches, jerry cans, fire accelerant and fireworks, except with the written permission of your probation officer. If you are granted permission, you must carry a copy of the permission when you possess any of these items outside your residence (2629); and finally,
13. In order to promote a sense of responsibility and an acknowledgment of the harm you have caused, I am ordering you to write two apologies. I want you to think carefully about what you want to say. First, you must apologize to your grandmother, Veronica Dennis, and Second you must apologize to the Sandman Inn and Suites Hotel at 550 Columbia Street in Kamloops British Columbia. Both apologies must be written in the manner directed by your probation officer and to the satisfaction of your probation officer by December 14, 2018 (2515);
Ancillary Orders
[36] Section 433 attracts a mandatory firearms prohibition pursuant to s. 109 and so I order that:
You are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, and explosive substance for life.
[37] Count one on Information104356-2-C is a secondary designated offence. After considering the factors set out in s 487.051(3), I am satisfied that it is in the best interest of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank and I make that order.
[38] The samples will be taken from you while you are in jail and you must submit to the taking of the samples.
_______________________________
M.R. Armstrong
Provincial Court Judge